The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-01-12
W. G. II. mckinney, EFT AL,
JOHN WILLIS.

Appeal from the Chancery Court OF
| Sharkey county. Hon. Warren Cowan
| Chancellor.
E. II. McGarr and Calhoon & Green,
for the appellants.
Miller, Smith & Hirsh, for the appel
lee.
W. G. Fl. Mckinney and w. n. Bar
nard filed this bill in equity against
John Willis. The bill set out that in
December, 1882, John Willis distrained
certain property belonging to Geo. w.
and J. A. Hollingsworth; that the Hol-
lingsworths replevied the property, with
complainants as sureties on their re-
plevin bond; that at the last term of
| the circuit court an award of arbi
tration was made and filed therein and
entered as Judgment of said court in
| the case of Willis v. Hollingsworth
that one of the arbitrator was near
kinsman of Willis, and another was
biased and prejudiced against the Hol
| lingsworths; that complainant did not
know these facts until after the court
ordered the award to be made judg-
ment, and that they never agreed to
any order of submission; that the iudg
ment of the circuit court is against the
Hollingsworths and compliments; that
Willis seeks to levy Immediately, with
out awaiting the return day of the court; ;
that the award reached is wholly I'M
Just; that the sum awarded is erroneous
and excessive; that the arbltrators re-
fused to hear evidence as to the value
of the property, but accepted the esti-
mate of the levying officer as conclusive
that the Hollingsworths are insolve 1T
and that complainants will have to pay
it; that the Hollingsworths had good
and valid defence in the circuit court,
to-wit: The distress warrant was taken
out on an affidavit for rent "not DUE"
and after replevy and bond given and
declaration filed, this affidavit was
changed, on motion, to an affidavit for
'srent due and in arrear;" that the Hol-
lingsworths at the same term at which
judgment was rendered made motion
to set aside the award, and offered to
prove substantially the matters set out
in this bill, but that the court refused
to hold open for few hours to enable
him so to do; that complainants were
by this action of the court prevented
from making such a showing as was ne
cessary and proper in order that they
might present their case fully and fairly
to the Supreme Court on appeal. The
bill then prays that the award of the
board of arbitrators be set aside, and
that Willis be enjoined from enforcing
his judgment, until the whole case can
be determined by the chancellor. The
demurred to the bill, and the |
demurrer was sustained. The complain |
ants appealed.
COOPER, C. j., delivered the opinion of
the Court.
If the circuit court erred in permit
ting Willis, the landlord, to amend his
affidavit on which his distress warrant
had been issued; or in rendering judg-
mept on the award made by the referees
against the complainsnts, who were
sureties on the replevin bond given by
the tenants, they should have interposed
heir objection in that court when judg-
ment was about to be entered against
Ehem, and appealed from the judgment.
II there is error now there was error
hen; the error if it exists is apparent
IN the face of thst record, or might
have been made to appear by the record
which they might have made. The
remedy was plain, adequate and com,
,lete in the court having jurisdiction of
he cause, and the compIainants having
allied to avail themselves of the oppor-
unity then afforded them cannot now
esort to equity for relief. Thomas v.
4 s. and NJ, S58; Jones '.
Joker, So Miss, 1876. +
II one of the referees to whom the
ause was referred, was subject TO ex-